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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No.: EB-09-TC-325
Sprint Nextel Corporation
) Acct. No.: 201132170016
Compliance with the Commission's
) FRN: 0003774593
Company-Specific Do-Not-Call Rules
)
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau of the Federal Communications Commission and
Sprint Nextel Corporation, by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the
Enforcement Bureau's investigation regarding Sprint Nextel
Corporation's compliance with the Company-Specific Do-Not-Call Rules.
II. DEFINITIONS
2. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Affiliate," for purposes of this Consent Decree only, means a person
or entity that Sprint (directly or indirectly) controls, either de
facto or de jure, for the purpose of any activity covered by section
64.1200 of the Commission's rules, 47 C.F.R. S: 64.1200, and any
successors or assigns serving these entities.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" or "FCC" means the Federal Communications Commission and
all of its bureaus and offices.
f. "Company-Specific Do-Not-Call Rules" means the rules set forth at 47
C.F.R. S: 64.1200(d).
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the Bureau's investigation regarding Sprint's
compliance with section 227 of the Communications Act, 47 U.S.C.
S: 227, and section 64.1200 of the Commission's rules, 47 C.F.R.
S: 64.1200, initiated by a June 11, 2009 letter of inquiry.
i. "Parties" means Sprint and the Bureau, each of which is a "Party."
j. "Rules" means those rules and regulations codified in Title 47 of the
Code of Federal Regulations.
k. "Sprint" or "Company" means Sprint Nextel Corporation, its
Affiliates, and its predecessors-in-interest and
successors-in-interest.
III. BACKGROUND
3. Pursuant to section 227 of the Act, the Commission has adopted
Company-Specific Do-Not-Call Rules. These rules generally prohibit a
person or entity from making any call for telemarketing purposes to a
residential telephone subscriber unless the person or entity has
instituted certain defined minimum standards for maintaining a list of
persons who request not to receive calls made by or on behalf of that
person or entity. 47 C.F.R. S: 64.1200(d).
4. On June 11, 2009, in response to consumer complaints, the Bureau
issued a letter of inquiry regarding Sprint's compliance with section
227 of the Communications Act, 47 U.S.C. S: 227, and section 64.1200
of the Commission's rules, 47 C.F.R. S: 64.1200. In its response,
Sprint stated, among other things, that due to an unintentional
equipment malfunction one of its servers had failed, for a time, to
process requests from consumers who did not wish to be contacted by
Sprint. Sprint discovered the malfunction independently and asserts
that it corrected the technical problem to prevent future occurrences.
5. On March 11, 2010, the Bureau issued a second letter of inquiry to
determine whether Sprint's server failure led to Sprint violating the
Commission's Company-Specific Do-Not-Call Rules. On June 3, 2010,
Sprint responded to the Bureau's second letter of inquiry. The Parties
entered into agreements to toll the applicable statute of limitations
in order to give the Parties an opportunity to engage in settlement
discussions leading to this Consent Decree.
IV. TERMS OF AGREEMENT
6. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion. Sprint's decision
to enter into this Consent Decree is expressly contingent upon the
Bureau's issuance of an Adopting Order.
7. Jurisdiction. Sprint agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority
to enter into and adopt this Consent Decree.
8. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon the Effective Date,
the Adopting Order and this Consent Decree shall have the same force
and effect as any other order of the Commission. Any violation of the
Adopting Order or of the terms of this Consent Decree shall constitute
a separate violation of a Commission order, entitling the Commission
to exercise any rights and remedies attendant to the enforcement of a
Commission order.
9. Termination of Investigation. In express reliance on the covenants and
representations contained herein, and to avoid expenditure of
additional public resources, the Bureau agrees to terminate the
Investigation. The Parties agree that this Consent Decree is for
settlement purposes only, and that by agreeing to this Consent Decree,
Sprint does not admit or deny any noncompliance, violation, or
liability associated with or arising from its actions or omissions
involving the Act or the Commission's rules that are the subject of
this Consent Decree. In consideration for the termination of said
Investigation, and in accordance with the terms of this Consent
Decree, Sprint agrees to the terms, conditions, and procedures
contained herein. The Bureau agrees that, in the absence of new
material evidence related to the Investigation, it will not use the
facts developed in the Investigation through the Effective Date, or
the existence of this Consent Decree, to institute, on its own motion,
or refer to the Commission, any new proceeding, formal or informal, or
take, on its own motion, or refer to the Commission, any action
against Sprint, concerning the matters that were the subject of the
Investigation, or with respect to Sprint's basic qualifications,
including its character qualifications, to be a Commission licensee or
hold other Commission authorizations.
10. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to section 208 of the Act
against Sprint for alleged violations of the Act, or for any other
type of alleged misconduct, regardless of when such misconduct took
place. The Commission's adjudication of any such complaint will be
based solely on the record developed in that proceeding. Except as
expressly provided in this Consent Decree, this Consent Decree shall
not prevent the Commission from investigating new evidence of
noncompliance by Sprint of the Act, the Rules, or the Adopting Order.
11. Compliance Plan. To resolve and terminate the Investigation, and
without admitting or denying any violation of the Act or the
Commission's rules, Sprint agrees to implement a Compliance Plan,
consistent with this Paragraph 11.
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Sprint shall designate a senior corporate manager to
service as a Compliance Officer. The Compliance Officer shall be
responsible for administering the Compliance Plan and ensuring
compliance with this Consent Decree, and shall be familiar with all
legal requirements relating to the Company-Specific Do-Not-Call Rules.
b. Validation of Company-Specific Do-Not-Call Opt-out Programs. Within
thirty (30) calendar days after the Effective Date, and periodically
and regularly while the Compliance Plan is in effect, Sprint shall
review its Company-Specific Do-Not-Call opt-out programs to ensure:
(1) that such programs are working accurately, (2) that Sprint
employees responsible for managing and overseeing Sprint's opt-out
programs are processing requests timely and in compliance with the
Company-Specific Do-Not-Call Rules, and (3) that validation testing is
completed successfully, as described below. Specifically, Sprint
shall:
i. Ensure its mechanized systems generate appropriate error messages
when Company-Specific Do-Not-Call requests are not timely processed;
ii. For such mechanized systems, establish and maintain a technical team
to oversee the actual processing of opt-out requests and monitor
request file size and process completion on a regular basis,
including daily monitoring and periodic audits;
iii. Conduct a manual review, as needed, to track the receipt and
uploading of Company-Specific Do-Not-Call request input files for
any Sprint opt-out programs.
c. Training. Sprint shall ensure that, within sixty (60) calendar days of
the Effective Date, its employees who are responsible for managing or
carrying out Company-Specific Do-Not-Call opt-out programs have
received training regarding compliance with the Company-Specific
Do-Not-Call Rules. Sprint shall ensure that any new (or reassigned)
employee assigned the responsibilities noted in the previous sentence
receives Company-Specific Do-Not-Call training within thirty (30)
calendar days of starting employment (or the new assignment). The
training required by this Paragraph 11(c) shall focus on federal
Company-Specific Do-Not-Call opt-out requirements and the terms of
this Compliance Plan, and be repeated annually during the term of this
Consent Decree.
d. Reporting Non-Compliance. Sprint shall report any non-compliance with
this Consent Decree, or the Company-Specific Do-Not-Call Rules, to
the Enforcement Bureau within thirty (30) calendar days after the
discovery of non-compliance. Such reports shall include a detailed
explanation of (i) each instance of non-compliance; (ii) the steps
that Sprint has taken or will take to remedy such non-compliance;
(iii) the schedule on which such remedial actions will be taken; and
(iv) the steps that Sprint has taken or will take to prevent the
recurrence of any such non-compliance. All reports of non-compliance
shall be submitted to the Chief, Telecommunications Consumers
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street S.W., Washington, DC 20554, with a copy submitted
electronically to Lloyd.Collier@fcc.gov.
e. Compliance Report. The Compliance Officer, as an agent of and on
behalf of Sprint, shall file compliance reports ninety (90) calendar
days after the Effective Date, one (1) year after the Effective Date,
and at the end of the two (2) year term, in compliance with the terms
of Paragraph 11(f).
i. Each compliance report shall include a detailed description of
Sprint's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Commission's
Company-Specific Do-Not-Call Rules.
ii. Each compliance report shall include a certification by the
Compliance Officer, as an agent of and on behalf of Sprint, stating
that the Compliance Officer has personal knowledge that Sprint (A)
has established and implemented the Compliance Plan; (B) has been
following all aspects of the Compliance Plan for the entire term of
the Consent Decree; and (iii) is not aware of any instances of
non-compliance with the terms and conditions of this Consent Decree
that have not been disclosed as required by Paragraph 11(d) above.
The certification shall be accompanied by a statement explaining the
basis for the Compliance Officer's certification and must comply
with section 1.16 of the Rules and be subscribed to as true under
penalty of perjury in substantially the form set forth therein.
iii. If the Compliance Officer cannot provide the requisite
certification, the Compliance Officer, as an agent of and on behalf
of Sprint, shall provide the Commission with a detailed explanation
of (A) each instance of non-compliance; (B) the steps that Sprint
has taken or will take to remedy such non-compliance, including the
schedule on which proposed remedial actions will be taken; and (C)
the steps that Sprint has taken or will take to prevent recurrence
of any such non-compliance, including the schedule on which such
preventive action will be taken.
iv. Such certification must be mailed within fifteen (15) calendar days
of the one (1) and the two (2) year anniversary of the Effective
Date, and Sprint must mail its certification to the Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554, and must include the file numbers listed above. Sprint shall
also send an electronic copy of its certification to
Lloyd.Collier@fcc.gov.
f. Duration of Compliance Plan. Sprint shall implement the Compliance
Plan within sixty (60) calendar days of the Effective Date. The term
of the Compliance Plan shall expire two (2) years after the Effective
Date
12. Voluntary Contribution. In consideration for the termination of the
Investigation in accordance with the terms of this Consent Decree,
Sprint agrees to make a voluntary contribution to the United States
Treasury, without further protest or recourse to a trial de novo, in
the amount of four hundred thousand dollars ($400,000) within thirty
(30) calendar days after the Effective Date. This voluntary payment
does not constitute a forfeiture under the Act or the Commission's
rules. The payment must be made by check or similar instrument,
payable to the Order of the Federal Communications Commission. The
payment must include the Account Number and FRN referenced in the
caption to the Adopting Order. Payment by check or money order may be
mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza,
St. Louis, MO 63101. Payments by wire transfer may be made to ABA
Number 021030004, receiving bank Federal Reserve Bank of New York and
account number 27000001. Sprint will also send electronic notification
on the date said payment is made to Johnny.Drake@fcc.gov.
13. Waivers. Provided the Bureau issues an Adopting Order, Sprint waives
any and all rights it may have to seek administrative or judicial
reconsideration, review, appeal or stay, or to otherwise challenge or
contest the validity of this Consent Decree and the Adopting Order.
Sprint shall retain the right to challenge the Commission's
interpretation of the Consent Decree or any terms contained herein,
and of the Commission's rules. If either Party (or the United States
on behalf of the Commission) brings a judicial action to enforce the
terms of the Adopting Order or this Consent Decree, neither Sprint nor
the Bureau shall contest the validity of the Consent Decree or the
Adopting Order, and Sprint shall waive any statutory right to a trial
de novo with respect to the issuance of the Adopting Order and shall
consent to a judgment incorporating the terms of this Consent Decree.
Sprint hereby agrees to waive any claims it may otherwise have under
the Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S:
1.1501 et seq., relating to the matters contained in this Consent
Decree.
14. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. In the
event that this Consent Decree in its entirety is rendered invalid by
any court of competent jurisdiction, it shall become null and void and
may not be used in any manner in any legal proceeding.
15. Privileged and Confidential Documents. By this Consent Decree, Sprint
neither waives nor alters its right to assert and seek protection from
disclosure of any privileged or otherwise confidential and protected
documents and information, or to seek appropriate safeguards of
confidentiality for any competitively sensitive or proprietary
information.
16. Subsequent Rule or Order. The Parties agree that if any provision of
this Consent Decree is inconsistent with any subsequent rule or order
adopted by the Commission, that provision will be superseded by such
Commission rule or order.
17. Successors and Assigns. Sprint agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
18. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement of the above-described
Investigation. The Parties agree that this Consent Decree does not
constitute either an adjudication on the merits or a factual or legal
finding or determination regarding any compliance or noncompliance by
Sprint with the requirements of the Act or the Commission's rules or
orders.
19. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
20. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
21. Counterparts. This Consent Decree may be signed in counterparts
(including by facsimile or electronic mail), each of which, when
executed and delivered, shall be an original, and all of which
counterparts together shall constitute one and the same fully executed
instrument.
22. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
For: Sprint Nextel Corporation
__________ ________________________________
Date Peter N. Sywenki
Acting Vice President for Policy and Privacy
Sprint Nextel Corporation
For: Federal Communications Commission
__________ ________________________________
Date P. Michele Ellison
Chief, Enforcement Bureau
Letter from Josh Zeldis, Assistant Div. Chief, Telecomm. Consumers Div.,
EB, FCC, to Edward Palmieri, Deputy Chief Privacy Officer, Sprint Nextel
Corporation (June 11, 2009) (on file with EB).
Letter from Kent Nakamura, Vice President for Policy and Privacy, Sprint
Nextel Corp., to Lloyd Collier, Senior Attorney, Telecomm. Consumers Div.,
EB, FCC (July 31, 2009) (on file with EB).
Letter from Josh Zeldis, Assistant Div. Chief, Telecomm. Consumers Div.,
EB, FCC, to John Roche, Perkins Coie, LLP, (Mar. 11, 2010) (on file with
EB).
Letter from Kent Nakamura, Vice President for Policy and Privacy, Sprint
Nextel Corp., to Lloyd Collier, Senior Attorney, Telecomm. Consumers Div.,
EB, FCC (June 3, 2010) (on file with EB).
Federal Communications Commission DA 11-843
7
Federal Communications Commission DA 11-843